Legal History — Overview
Discussion Groups
These self-sustaining groups are an essential part of the life of our graduate school. They are organised in some cases by graduate students and in others by Faculty members and meet regularly during term, typically over a sandwich lunch, when one of the group presents work in progress or introduces a discussion of a particular issue or new case. They may also encompass guest speakers from the faculty and beyond.
Publications
Showing selected publications sorted by year, then title [change this]
Showing key publications in this field, as selected by the author
Change to sort them by title | name | type OR
Show All 73 | Recent publications
2013
M R Macnair, 'Arbitrary Chancellors and the problem of predictability' in Willem Zwalve & Egbert Koops (eds), Law and Equity: Roman Law and Common Law approaches (Brill 2013) (forthcoming) [...]
Roman law experienced concerns about arbitrary decision-making by Praetors. English equity being much more recent, we have much better evidence both for actual arbitrary decision-making by Chancellors, and for concerns about arbitrary decision-making by Chancellors. The remedies adopted, however, are profoundly different. The Romans made the Edict more like the Twelve Tables - a code. The development of English law, in contrast, made equity more like the common law: a system based on the communis opinio of a narrow group of advocates (in the case of modern Chancery equity, the specialist Chancery bar), expressed in the heavy use of precedent and case reporting, modified by particularistic statutes, and governed by collegiate courts of review or (in modern times) appeal. The eventual upshot is that modern ‘Chancery bar equity’ is perhaps the least ‘equitable’, in the Aristotelian ἐπιείκεια sense of ‘flexible’, branch of English law.
2012
M R Macnair, 'Coke v Fountaine (1676)' in Charles Mitchell & Paul Mitchell (eds), Landmark Cases in Equity (Hart 2012) (forthcoming) [...]
Though commonly cited in modern equity books, Lord Nottingham's decision in Coke v Fountaine was only reported by Lord Nottingham himself and was not cited until Swanston printed Lord Nottingham's report in 1827 - though other aspects of the litigation were reported and cited. This chapter examines why this was the case, working through the background to the litigation and its complex multiple character, concluding that Lord Nottingham's decision 'turned on its own facts,' and in so far as it was worth citing, was obscured by the passage in the following year of the Statute of Frauds.
J S Getzler, 'Morice v Bishop of Durham (1805)' in C Mitchell and P Mitchell (eds), Landmark Cases in Equity (Hart Publishing 2012) [...]
Morice v Bishop of Durham (1804-5) is most definitely a leading case in the law of trusts. But it was not cited as authority for any 'beneficiary principle' or 'certainty of objects' rule in the general texts of trusts and equity until well toward the middle of the nineteenth century. Its real celebrity as a leading decision dates to the early and mid-twentieth century, as lawyers grappled with the challenge of amorphous beneficial objects in the new environments of family and corporate tax planning, corporate finance, pensions, and offshore jurisdictions. The urgent problems facing lawyers at the time of Morice were rather different, and harked back to two linked issues that had troubled the legal system since before the Reformation -- controlling the deathbed disherison of heirs, and restraining the putting of testamentary property into mortmain, that is perpetual or 'deadhand' control of property by ecclesiastical bodies or other corporations. This explains why Morice was early picked up by cases and texts on mortmain and charitable uses, and remained rather invisible in the key literatures on trusts. The beneficiary principle had to become controversial before it could be noticed properly as a foundational doctrine.
ISBN: 9781849461542
2011
M R Macnair, 'Free Association versus Juridification' (2011) 39 Critique 53 [...]
DOI: 10.1080/03017605.2011.537453
The article argues that the 'unlawfulness' of industrial action at common law is the product of judicial bias; and that there are institutional reasons in the structure of the legal system to suggest that such bias is ongoing and will be applied to any legislative framework
2010
J S Getzler, 'Richard Epstein, Strict Liability, and the History of Torts' (2010) 3 Journal of Tort Law #3 [...]
Epstein's strict liability model of tort law, first stated in 1973, relied on arguments derived from the history of the common law, starting with the late medieval period and extending into the nineteenth century. Since that seminal article was published, legal historical scholarship has deepened our understanding of earlier tort law and brought many new sources to bear, and it has also uncovered a pervasive if quiet Romanistic influence on doctrinal development. None of this new work overturns Epstein's historical intuitions, and his strict liability theory can continue to claim support in the practices of the older common law.
ISBN: 1932-9148
2009
J S Getzler, 'Transplantation and Mutation in Anglo-American Trust Law' (2009) 10 Theoretical Inquiries in Law 355 [...]
In the early nineteenth century, authoritative treatise writers such as Joseph Story represented Anglo-American trust law as a seamless web. But the transplantation of trusts law from England to America was not a simple process of adherence. Rather, American courts and legislatures came to discard fundamental doctrines of English trusts law, and by such genetic engineering mutated this body of law into a new breed. Restraints on anticipation and on alienation were embraced, and in key state jurisdictions bare trusts were abolished, or else displaced from the core of trusts law. Irreducible settlor power over beneficiaries and the strong protection of beneficiaries from creditors under spendthrift trusts were two strikingly original American creations flowing from these basic doctrinal choices. The changes made to American trust doctrine leads to a paradox for the legal, social and economic historian, namely that republican America ended up with more a dynastic property law, more wedded to the dead hand and more hostile to commercial creditors, than did aristocratic England with its unreformed system of common law and equity rooted in the feudal property system. This paper explains how the English slowly came to commit to relatively free alienability of beneficial interests and the enhancement of beneficiary's powers over trust assets, and then charts how Americans abandoned these commitments. Some fresh interpretations are offered as to why these divergences occurred, rooted in the volatility of credit in America and the desire of the wealthy to escape from the pressures of the market.
ISBN: 1565-1509
Courses
The courses we offer in this field are:
Undergraduate
FHS - Final Year (Phase III)
The degree is awarded on the basis of nine final examinations at the end of the three-year course (or four years in the case of Law with Law Studies in Europe) and (for students who began the course in October 2011 or later) an essay in Jurisprudence written over the summer vacation at the end of the second year. Note: the Jurisprudence exam at the end of the third year is correspondingly shorter. This phase of the Final Honour School includes the first and second term of the final year; the Final Examinations are taken in the third term of the final year.
[less]
This option studies the history of the principal features of the branches of law that are today known as tort, contract, land law, and trusts. The course is taught using a selection of primary sources (in translation where necessary) and of academic literature. Students are expected in the course of study to acquire knowledge of the sources of law and of the judicial system. The timespan covered is roughly between the fifteenth and the nineteenth century. This period, of course, contains a large number of separable issues, and the course is designed so that individuals can follow to some extent their own preferences, both amongst and within the major heads of study.
The examination paper contains an above average number of questions, (currently 12), which reflects this flexibility. The treatment of the subject is primarily legal, though the political, social and economic constituents in the story are referred to whenever this assists our perception of specifically legal ideas.
The teaching presumes a familiarity with the notions of property, tort and contract law and is virtually exclusively taught as a final year option. The legal history does not serve as an introduction to the modern law; if anything, the converse is the case. It is in this sense an advanced course; the feedback to the modern law is conceptual or theoretical, though a study of the history may occasionally illuminate a modern problem. There is, however, absolutely no need to have studied any other kind of English history, nor is familiarity with foreign languages necessary since the course is designed around translated materials.The course delivery will be on a ‘long thin’ model, entailing five two-hour seminars in each of Michaelmas and Hilary terms, generally co-taught by Dr Macnair and Dr Getzler, which will be focussed on primary texts. Each term will also contain three sets of tutorials, interspersed between the seminars and enabling students to research and write about controversies in connection with the main seminar topics. By close of Hilary students will have received ten seminars and six tutorials; in Trinity term there may be further revision seminars and classes in Weeks 1-3.
[less]
Diploma in Legal Studies
A one-year sample of courses from our BA programmes, aimed only at students visiting from our partner universities.
[less]
This option studies the history of the principal features of the branches of law that are today known as tort, contract, land law, and trusts. The course is taught using a selection of primary sources (in translation where necessary) and of academic literature. Students are expected in the course of study to acquire knowledge of the sources of law and of the judicial system. The timespan covered is roughly between the fifteenth and the nineteenth century. This period, of course, contains a large number of separable issues, and the course is designed so that individuals can follow to some extent their own preferences, both amongst and within the major heads of study.
The examination paper contains an above average number of questions, (currently 12), which reflects this flexibility. The treatment of the subject is primarily legal, though the political, social and economic constituents in the story are referred to whenever this assists our perception of specifically legal ideas.
The teaching presumes a familiarity with the notions of property, tort and contract law and is virtually exclusively taught as a final year option. The legal history does not serve as an introduction to the modern law; if anything, the converse is the case. It is in this sense an advanced course; the feedback to the modern law is conceptual or theoretical, though a study of the history may occasionally illuminate a modern problem. There is, however, absolutely no need to have studied any other kind of English history, nor is familiarity with foreign languages necessary since the course is designed around translated materials.The course delivery will be on a ‘long thin’ model, entailing five two-hour seminars in each of Michaelmas and Hilary terms, generally co-taught by Dr Macnair and Dr Getzler, which will be focussed on primary texts. Each term will also contain three sets of tutorials, interspersed between the seminars and enabling students to research and write about controversies in connection with the main seminar topics. By close of Hilary students will have received ten seminars and six tutorials; in Trinity term there may be further revision seminars and classes in Weeks 1-3.
[less]
Postgraduate
BCL
Our taught postgraduate programme, designed to serve outstanding law students from common-law backgrounds
[less]
Law and Society in Medieval England
This course offers an in-depth study of core areas of property and obligations law in later thirteenth and early fourteenth century England and their relationships - through legislative and judicial change and legal writing - to the medieval society of which they were part.
The topics covered are: law and the family; family settlements; lordship and ownership; property remedies; the enforcement of tenurial obligations; debts and securities; contracts, leases and property management; wrongs; problems of jurisdiction.
This course was formerly run as Legal History: Legislative Reform of the Early Common Law.
The materials studied are statutes, case reports, and treatises and instructional literature from the period, together with the modern academic literature on the topics. All the sources used are provided in translation, so that knowledge of Latin and French is not required. Prior knowledge of the history of English law is not required.
The primary teaching method is by eight fortnightly seminars running from mid Michaelmas to early Trinity terms.
This course is taught by Dr Paul Brand and Dr Mike Macair.
[less]
MJur
Our taught postgraduate programme, designed to serve outstanding law students from civil law backgrounds.
[less]
Law and Society in Medieval England
This course offers an in-depth study of core areas of property and obligations law in later thirteenth and early fourteenth century England and their relationships - through legislative and judicial change and legal writing - to the medieval society of which they were part.
The topics covered are: law and the family; family settlements; lordship and ownership; property remedies; the enforcement of tenurial obligations; debts and securities; contracts, leases and property management; wrongs; problems of jurisdiction.
This course was formerly run as Legal History: Legislative Reform of the Early Common Law.
The materials studied are statutes, case reports, and treatises and instructional literature from the period, together with the modern academic literature on the topics. All the sources used are provided in translation, so that knowledge of Latin and French is not required. Prior knowledge of the history of English law is not required.
The primary teaching method is by eight fortnightly seminars running from mid Michaelmas to early Trinity terms.
This course is taught by Dr Paul Brand and Dr Mike Macair.
[less]
People
Legal History teaching is organized by a Subject Group convened by:
Mike Macnair: CUF Lecturer
in conjunction with:
Paul Brand: Professor of English Legal History
Joshua Getzler: Professor of Law and Legal History
Also working in this field, but not involved in its teaching programme:
Alexandra Braun: CUF Lecturer
Jeffrey Hackney: Retired. Formerly Fellow and Tutor in Law at Wadham and St Edmund Hall
Peter Hayward: Retired. Formerly Fellow of St Peter's
Charles Mitchell: Visiting Professor
Andelka Phillips: DPhil Law student
Stefan Vogenauer: Linklaters Professor of Comparative Law
